Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

29 July 2012

Sausage/Countersausage

This is just a collection of musings and bookmarks that have been too long in the comment queue, particularly as a result of the move (which isn't over yet, thus the still-sporadic batches of link sausages — and general ire).

Digital rights and their limits — and lending rights and their limits — are much in the news of late. The key commonality that makes both of them difficult issues, though, is that it is seldom the actual creator who is/is not at issue; it is almost always a creature in the middle. For textual works, this is a publisher; for audio works, a record label; for audiovisual works, a studio and/or network. US law makes this problem much more difficult with its work-for-hire doctrine that (improperly, illogically, and quite possibly unconstitutionally) redefines "author" to mean "patron" for many of these works. It's a unique doctrine — nobody else in the world uses it, and yet there's a thriving recorded-music industry in Europe, and a thriving film industry in Europe, etc. — so perhaps we should just get rid of it. Besides, it's just not that hard to get a proper assignment of rights(PDF) that overcomes the problem, but leaves a paper trail behind so that "orphanage" is less likely.

What I find most worrisome about this issue is the disjuncture between the business interests of (and in) publishing and the rhetoric being used regarding orphan works, lending rights, and digital rights. Examining this list of the world's 50-odd largest publishers (you'll need to page down) is quite disturbing in this context. For example, of the top ten in the list, four have no "trade" presence at all, and the "trade" presence of all but one of the other six is substantially less than half of their revenues, unit sales, and titles in print. Each decade down the list shows similar characteristics, or is even more heavily slanted against trade books. And that's "trade books" including trade nonfiction! Conversely, the rhetoric in the battle over "preservation," "digital libraries," and orphans would ignore books on chicken farming in favor of illogical fantasies where east and west are reversed and the main roads are paved with yellow bricks. So long as we've got "one size fits all" copyright, that's an inevitable source of failures to communicate. The problem with more-nuanced distinctions among copyrighted works is that it leaves lawyers making the nuanced distinctions...

An ignorant git who should know better — he proclaims himself a professor of political science — opines that we shouldn't teach algebra in high school any more, because It's Too Hard. There is any number of rejoinders to this claim: That it's just plain wrong is only the most obvious. Perhaps we could aspire to Kennedy's challenge that we should

[C]hoose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.

and want to learn algebra because it's hard. Or perhaps — just perhaps — the teaching of algebra sucks because we've got unprepared teachers, who themselves found algebra hard. We expect better of PE teachers; why not in math?

Or maybe we could just accept that knowing what tools are in the basic-math toolbox is part of what is necessary to adapt to change of all kinds — not just in jobs, but in society as a whole. I would have expected better for someone with a background in political science... let alone someone who teaches "government," which today barely resembles what it did in eighty years ago before sick chickens became relevant, before governments were "supposed" to care about public health (aside: failure of governments to provide adequately for public health is one of the largest factors predisposing the populace to violent revolution; but then, I'm a military historian without a terminal degree in that area and not a political scientist, so my knowledge and insights probably don't matter to Mr Hacker and his ilk).

One might also argue, though, that things really haven't changed that much, or that rapidly: That in some ways, the politics of nations and nationalism are neomedieval. Ironically, battles over jurisdiction on/by/through the 'net — whether private or public, whether judicial or governmental — seem even more "regressive" than the problems with phantom states. There are a few great near-future science fiction novels in there somewhere... probably laced with weaponized chile extracts.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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